Tuesday, December 29, 2020

BREAKING: Arizona Election Audit Subpoena Battle Is *On Again*, As State Senate Pres. Fann Files For Injunction; Fun Trump Subpoena Twist

 After a Christmas weekend break, Arizona Republican lawmakers have resumed their court battle to force Maricopa County to comply with subpoenas for broad swaths of ballots, information and equipment related to the November 3 Presidential election.

State Senate President Karen Fann and Judiciary Committee Chair Eddie Farnsworth answered the suit filed by Maricopa County on December 18. Fann/Farnsworth also struck back with their own suit (aka "counterclaim") and a new Motion for a Preliminary Injunction to force compliance. Both pleadings are published below.

Attorney Tom Basile tells Arizona's Law that today's pleadings make their previous lawsuit unnecessary. Judge Randall Warner had dismissed that case but specifically allowed them to file an Amended Complaint based on an Arizona law that they had not previously cited.

The new injunction request is primarily based on that statute, as well as constitutional grounds. And interestingly and ironically, it cites a U.S. Supreme Court opinion from earlier in the year where the Justices determined that President Donald Trump's accounting firm (Mazar's) was required to comply with Congressional subpoenas. 

As the United States Supreme Court recently reaffirmed in discussing the cognate power of the Congress and its committees embedded in Article I of the federal Constitution: Congress has no enumerated constitutional power to conduct investigations or issue subpoenas, but we have held that each House has power to secure needed information in order to legislate. This power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function . . .The congressional power to obtain information is broad and indispensable. It encompasses inquiries into the administration of existing laws, studies of proposed laws, and surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them. Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2031 (2020)
Given that “the power of the [Arizona] legislature is plenary . . . unless that power is limited by express or inferential provisions of the Constitution,” then the same prerogative must necessarily reside in Article IV of the Arizona Constitution.  (citations omitted)

While Fann and Farnsworth previously indicated that they wished to obtain the information and equipment from the County in conduct an audit before Congress convenes on Jaunary 6 to count the Electoral College votes - and, most Trump supporters are still talking about the need for the information before then - today's Motion is careful to stress that the reasons for the subpoenas are to help the Legislature make good laws for the future.

Superior Court Judge Tim Thomason has not yet set a hearing on the injunction request.

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